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Those Execution Drugs Will Not Go Quietly

Thanks to my wandering about for yesterday’s post, I was reminded about the challenges facing the execution drug supply in the United States. A few news items worth passing along in this area, where foreign firms are doing their best to restrict or eliminate the importation of drugs into the U.S. that can be used for executions.

Pancuronium bromide, one of the drugs in the three-drug cocktail that many states use for lethal injection, is on the FDA’s current drug shortage list. (H/T Reprieve, a legal action charity not keen on the death penalty) Unfortunately, I can’t tell how long the drug has been on the list, only that the listing was reverified earlier this month. As with the other drugs commonly used in executions, the drug is used for other things, which means there is a possibility that other live saving measures may not be taken as states are stockpiling the drug for executions.

Some states are exploring other execution protocols. For example, the State of Missouri has decided to shift to the anesthetic propofol (also called Diprovan) as a one-drug protocol (H/T Reprieve). Propofol is also on the drug shortage list, and perhaps the State of Missouri can be credited for one manufacturer’s report of increased demand.

Finally, the Food and Drug Administration (FDA) has managed to get entangled in court action due to how it did or didn’t handle the foreign importation of execution drugs. Claiming that reviewing substances intended for executions was outside the scope of the agency’s jurisdiction, the FDA still had to decide whether to allow the importation of the drugs. So they allowed the import of the drugs, but would not judge the quality, reliability or safety of those drugs. Even those of us not on death row can see the loophole here, which several inmates opted to pursue with a lawsuit (H/T Pharmalot) filed last year. The complaint alleges several violations of the law by the FDA, mostly around the notion that the FDA should not allow the importation of a drug that they cannot (or will not) judge to be safe and unadulterated.

In March of this year, the judge in the case ruled in favor of the Plaintiffs’ motion for summary judgement (and denied the Defendants’ motion). Just this month the FDA has filed an appeal of that judgment, prompted in part by several states’ attorneys general who were ordered to return their foreign supplies (usually meaning all of their supplies) of thiopenthal. They subsequently wrote to the Justice Department to encourage an appeal. The letter notes that the March decision runs counter to FDA practice to defer to law enforcement where execution drugs are concerned.

With this appeal, the case continues. Whether the Plaintiffs will all survive to see a final resolution is unclear (three of 24 have been executed so far).